On February 20, 2018,
the Pennsylvania Commonwealth Court denied a zoning
appeal from the Delaware
Riverkeeper Network and several landowners in favor of the Mariner East 2
Pipeline. The plaintiffs argued that construction of the pipeline violated the
West Goshen Township zoning ordinance. Previously, the trial court held that
the zoning ordinance was preempted by state law. The appeals court agreed,
stating that Goshen Township lacked the authority to zone in a manner denying a
public utility pipeline service regulated by the Public Utility Commission.

On February 22, 2018,
the U.S. District Court for the Northern District of California issued an order granting a preliminary injunction in favor of
several environmental groups against the Bureau of Land
Management (BLM) (California,
et al., v. BLM, 17-cv-07187; Sierra Club, et al., v. Ryane Zinke,
17-cv-07186). The case was brought against BLM for their proposed rule that
would delay the requirements of the Waste
Prevention, Production Subject to Royalties, and Resource Conservationrule. These lawsuits were brought in December 2017 soon after BLM
issued the proposed rule. The court held that the plaintiffs are likely to
succeed on the merits, and they “have shown irreparable injury caused by the
waste of publicly owned natural gas, increased air pollution and associated
health impacts, and exacerbated climate impacts.”

On February 15, 2018,
the West Virginia
House passed a bill (H.B. 4268) that will allow oil and gas companies to drill
on property where at least three fourths of the royalty interest owners have
consented to development. The new law would apply only where there are seven or
more royalty owners and the drilling company has made reasonable efforts to
negotiate with all owners. Nonconsenting owners may receive a prorata share of
production royalties while profits for unknown or unlocatable owners will be
deposited in a fund in the State Treasury. The bill was passed in the House by
a vote of 60 to 40 and was introduced in the Senate on February
16th.

On February 20, 2018,
the Public Service Commission of West Virginia issued a siting
certificate to ESC Brooke County
Power I, LLC (ESC) for an electric generating facility in Brooke County. The
natural gas-fired facility will generate approximately 830 MW and will be
constructed and operated by ESC. The facility will be located in the West
Virginia Division of Natural Resources’ Cross Creek Wildlife Management Area.
The facility is estimated to cost $884 million and expected to operate for 30
years.

Water Quality: Delaware
River Basin Commission Holds Public Hearings on Proposed Rulemaking

On February 22, 2018,
the Delaware River
Basin Commission
(DRBC) held the last in-person
public hearing on the proposed
rulemaking to amend its Special Regulations. The proposed
amendment (18 CFR 440) includes a
section prohibiting the use of high volume hydraulic fracturing within the
Delaware River Basin (DRB). The
amendment also discourages the use of water from the DRB for hydraulic
fracturing purposes. Additionally, the rule discourages the importation of
wastewater from hydraulic fracturing. The public comment period on the proposed
changes will be open through March 30, 2018.

Pipelines: Court Orders
Government to Review Keystone XL Documents

On February 21, 2018,
the U.S. District Court for the District of Montana issued an order requiring
federal officials to review documents relating to the Keystone XL pipeline,
according to Associated
Press. The court order
applies to two cases brought by several environmental groups (Indigenous
Environmental Network v. U.S. Department of State, No. 4:17-cv-00029; Northern Plains
Resource Council v. Shannon, No. 4:17-cv-00031). Associated Press writes that any relevant
documents must be provided to the court by March 21st, or the government must
explain why the documents are being withheld.

On February 21, 2018, the
U.S. District Court for the Southern District of West Virginia granted Mountain Valley Pipeline,
LLC’s (MVP) motion for partial summary judgement allowing MVP to immediately
access and possess the condemned easements. MVP was issued a certificate
authorizing construction by the Federal Energy
Regulatory Commission in October 2017. MVP then sought to obtain the
necessary easements to construct the pipeline. When MVP failed to obtain all
the necessary easements, they sought partial summary judgement to obtain
immediate access by use of eminent domain. In order to access the condemned
easements, the court has ordered MVP to post a deposit and security for the
land.

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The Center for Agricultural and Shale Law (CASL) provides information and educational programs on agricultural and shale law and policy for producers and agribusinesses, attorneys, government officials, and the general public. The Center does not provide legal advice, nor is its work intended to be a substitute for such advice and counsel.